Copyright law often isn’t as well understood as, for example, criminal defense, or family law. Most people may know that if you write a book, perform a song, or take a photograph, you can obtain copyright protection for those works. But what about items that you can’t protect through copyright? Here are some examples of items that aren’t eligible for copyright protection:
Ideas. To be eligible for copyright protection, works must be “fixed in a tangible medium of expression.” This can be on paper, on a computer drive, etc. Ideas and concepts don’t qualify. This can include business practices, mathematical formulas, and scientific discoveries and inventions – though such discoveries and inventions can be protected under patent law.
Title of a work. While you can’t protect the title of a work under copyright law, you can often protect the title of a literary series (i.e., the Harry Potter books) under trademark law.
General information. If a work lacks “creative expression”, then it’s not eligible for copyright protection. This can include lists of names (a phone book is a famous, if dated, reference) or lists of ingredients. Your shopping list, however impressive, will not qualify, but the cookbook in which you found the recipe, with its mouthwatering pictures and helpful cooking tips, will. Phrases that contain common knowledge, such as “George Washington was the first president of the United States,” aren’t eligible (though imagine the license fees if that phrase were protected!).
Slogans. Nike’s slogan “Just Do It” doesn’t contain enough “creative expression” to qualify for copyright protection, but it definitely is protected as a famous trademark.
Clothing designs. This is an interesting area — the subject of previous newsletter articles — because there’s a difference between the utilitarian portion of clothing (think of the shape of a t-shirt or pants) and the creative portion. The Copyright Act makes the creative features of an article of clothing eligible for copyright if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Laws and U.S. Government works. The Copyright Act specifies that, for U.S. government works, the copyright is owned by the individual author. However, there is less uniformity among state governments. Some states permit their own works to be protected by copyright (for example, Pennsylvania, Washington, Utah, and New York). In Pennsylvania, the Department of General Services can copyright Commonwealth publications with the approval of the governor, and Philadelphia has a similar provision regarding its Procurement Department. Other states (for example, Indiana, Massachusetts, and North Carolina) make it clear that their publications are not subject to copyright. The Supreme Court ruled in 2020 that publications of annotated state laws were not protectable by copyright (see our newsletter article on this subject).
Common Symbols and Designs. This again goes back to the issue of “creative expression”. The treble clef or the fleur de lys, however evocative they may be, are not eligible for copyright.
Blank Forms. Yes, there is a trend here. The general layout of a form lacks sufficient creative expression to be eligible for copyright protection, though separate elements of creative design contained on the form may be eligible.
Website domain names. Google.com is not eligible for copyright. But “Google” is protected by trademark law, as a registered mark of Google’s brand.
This is a broad summary and only scratches the surface of the issue of copyright eligibility. The Copyright Office has more examples in Circular 33. It’s definitely a hazardous area, very much dependent on the specific facts of a case. If you have questions, ask one of the attorneys at Lipton, Weinberger, and Husick.
— Joshua D. Waterston, Esq.